Migration, maintenance and the challenge for new types of transnational households

Inez Lopes

Migration and transnational families/households

Source: Ministry of Foreign Relations. An appraisal of Brazilians abroad 2014.

Migration flows of Brazilians

Migration and transnational families/households

Number of requests - 12.815

3910

41308

7654

52280 74 161

Foreign decisions by continents North America - 3910 Central America- 41 South America - 308 Europe - 7654 Asia - 522 Middle East - 80Australia - 74 Not informed - 161

Migration and transnational families in Asia and Australia

• Only few countries are part of the 1956 UN Convention on the Recovery Abroad of Maintenance.

• Most of cases for maintenance recovery in Asia and Australia are based upon reciprocity principle.

• None of foreign judgments requests for maintenance were based upon the UN Convention.

• Most of cases for foreign judgment recognition are from Japan (3,6%), China (0,2%), South Korea (0,1%) and Australia (0,5%).

• More than 80% of foreign judments are related to family law.

New types of families and households

• Family nuclei:– Married or unmarried couple with

or without children;– Father with chil(dren);– Mother with child(ren);– Same-sex couple– “Polylove” – more than 3 persons

(?)

• Types of households:– Family nucleus + other relatives;– Family nucleus + other nonelatives;– By surrogacy.

New types of households: human rights vs. public policy

• Same-sex family• Caser law REsp 1.281.093-SP - The family

environment supported by homo and heterosexual families for good psychosocial development of children seems to be the same. (Judgment 18/12/2012).

• Case law Resp 1.540.814-PR - “familiar pluralism” - Studies does not indicate any problem in which children are adopted by homosexual couples, more regardless of the bond and affection qualities that permeates the family environment in which they are inserted and linking them to those who look after them. Judgment 18/8/2015.

• Case law REsp 1.302.467-SP – It is legally possible to claim for maintenance due to the ending of civil partnership. Judgment 3/3/2015.

New types of transnational households: human rights vs. public policy

• Surrogacy cases: ordre public vs. best interest of child• In another caselaw, the Regional Court of Labour (TRT)

has recognised the direct employment link with the El Al Israel Airlines of an Israeli who used to work for outsourced companies that provided services to the airlines company. TRT has affirmed among others labour rights the following: employer registration, payment of amounts arising from the employment relationship and compensation of the period of stability, due to the birth his children, from surrogacy in civil partnership. Although, surrogacy has very restricted application and is not regulated by ordinary law, magistrates considered the need to protect the family and the unborn child in that time. Processo TRT/SP n.0002715-88.2011.5.02.0053, Judgment 21 Jan 2015.

Biotechnology/Artificial insemination/Surrogacy

Cross-border maintenance

• Concurrent competence concerning maintenance:New Civil Procedure Code (CPC). Art. 22. When the creditor is domiciled or residing in Brazil; or when the defendant maintained ties in Brazil, such as possession or ownership of assets, income received or obtain economic benefits.• The new CPC maintains the non-recognition

of international lis pendens (art. 24), however it excepts when there are provisions in international treaties and bilateral agreements in Brazil.

• Applies clausula rebus sic stantibus to maintenance obligation, which means that the amount may be changed to meet creditor´s need and debtor´s possibility (STJ - REsp 1205408 / RJ).

Recognition and Enforcement of maintenance

International legal cooperation

Two way street

Respecting legal cultural diversityAccess to justice

Best interest of child and

vulnerable person

Recognition and Enforcement • There shall not be discrimination between national and foreign judgment (both

are judicial enforcement orders according to the Civil Procedure Code).• Under the Brazilian legal system, in general a foreign judgment on recovery of

maintenance is held before federated state courts (family law office). • According to several precedents, the federated state courts are competent to

adjudicate alimony claim when the debtor is domiciled abroad on the basis of Decree No. 56.826 / 65 (The 1956 New York Convention on Recovery Abroad of Maintenance).

• Case law STJ CC 103390/SP. When the creditor is domiciled abroad, the Public Prosecutor Atorney is a competent body to claim maiintenace before federal court.

• Revision of the amount of maintenance that has been set can be revised in the event of any change in circumstances before state court (Law n. 5.478 of 25/06/1968 – “Maintenance Act” (precedents STJ REsp 1426082 / MG 02/06/2015; Resp 1.505.030 - MG04/08/2015REsp 1300154/SP 21/03/2013).

V. Enforcement measures• Debtor’s wage, salary, earnings or income withholding.• Garnsinhing wages, salaries• Profit sharing is subject to withholding• Case law – STJ REsp 1.332.808-SC• Payment of a profit sharing bonus is part of the child support calculation basis when

maintenance obligation is set at a percentage of income (judgment 18/12/2014).• Lump sum payment for maintenance• Case law - STJ REsp 1.332.808-SC, • Since there is no agreement or judicial provision to the contrary, 13th salary (extra

month salary paid at Christmas) does not compose the basis for maintenance payment when it is set on lump sum paymentJudgment 18/12/2014.

• Case law - STJ REsp 1.091.095-RJ. STJ has unpheld that child support paid in the amount (ten national minimum wage) and frequency (monthly) fixed in the final judgment must not focus on other labour benefits perceived by supported (as FGTS, 13th salary, holdiays, PIS/PASEP (social security benefits. Judgment 16/04/2013.

Enforcement measures

• Judicial protest• Provision n. 52 of 16 December 2010 – establishes

Standards of Corregedoria -Geral de Justiça (“Internal Affairs General of Justice), which governs the protest of final judgment handed down on maintenance claim by the courts.New Civil Procedure Code - the judge in a maintenance claim shall give to the notary an order to protest the final judgment (Art. 517) Consequently, it will be possible through judicial protest, the inclusion of the name of the debtor in credit bureau (SPC and Serasa).

Enforcement measures• Seizure of the debtor's assets• Immovable property• Case law STJ RESP 697.893-MS - Unable to claim the unseizable

of the family asset in case of enforcement of child support under the Family Law, pursuant to art. 3, III, of Law n.. 8.009 90. Being guarnished, it is valid the seizure of immovable property that in the event of non-payment of maintenance obligation, will be converted into garnishment in accordance with art. 654 of the CPC. Necessary, however, protect the equal-sharing of wife, who is not a debtor for maintenance due to child born out of wedlock. Judgment 21/06/2005

• Case law STJ MEDIDA CAUTELAR Nº 23.283 – DF- It is innominate injunction requested by the creditor, requesting an order of asset-freeze injunction against the debtor to guarantee future compliance of foreign judgment which would have set alimony to the applicant. The STH has upheld that it not possible because the main claim is foreign jugment recognition, SEC 5.889/CH, in which once given exequatur will produce effects of res judicata.

• Movable property – attaching bak accounts

• Case law STJ AREsp 193.242 –SP - Possibility of freezing assets of the amount in banking account to pay maintenance. 27/02/2014.

Enforcement measures• Garnishment• Brazilian law does not authorize

guarnisment on family asset for housing (art. 1 - Art. 1º The couple's own residential property, or the family unit is unattachable and not respond to any type of debt).

• However, in case of maintenance obligation it is possibile to guarnishee assets according to Art. 3 the creditor of maintenance, safeguarding the rights of the good, its co-owner who, with the debtor, integrate or stable marital union, subject to the assumptions on which both answer the debt (Law n. 13.144/2015).

Enforcement measures• Garnishment of family assets – possibility for maintenance • Caselaw STJ AGRAVO EM RECURSO ESPECIAL Nº 529.603 – SP. Maintenance arbitrated in

139% of the minimum wage in favour of two children. Family property seizure. Possibility. Judgment. 27/02/2015. Precedents : AgRg no REsp 1181980/RS, Judgment 16/12/2010. AgRg no REsp 1153477/RS. Judgment 11/10/2011.

• Attached of saving accounts - Case law Resp nº 1.218.118 – SP – Judgment 12/08/2014.

• Attachment of retirement benefits• Case law REsp 770797 For payment of child

benefit can not be pledged completeness of net retirement income, but only a percentage that allows indispensable to the survival of the child ; that the species is fixed at 66% of net proceeds from the monthly retirement of the appellant. Special feature provided only to adapt the percentage of attachment. DJ 29/11/2006

Enforcement measures• Garnishment + Civil arrest• Case law STJ HC 269900. The Civil Procedure Code allows the

coexistence of two enforcement demands for compliance maintenance (one following Art. 733 of the CPC and the other following Art. 732 of the same law, since the enforcement claims refer to different portions (Precedent n. 309/STJ). Garnishment of Inheritance rights Case law STJ REsp 1330165/RJ. It discusses the possibility of adjudication by the maintenance creditors, the hereditary rights of the debtor, seized in the case of inventory lawsuit and also the court’s competence to do so. Considering that the debtor is liable for the fulfillment of its obligations with all its present and future assets, except for the restrictions established by law (Article 591 of the CPC); that since the opening of the succession, inheritance joins the heritage of the heir, as well indivisible property; and that the real estate award is legitimate technique of payment, producing the same result expected with the delivery of a certain amount. The STJ has upheld that the defendant's inheritance rights may be adjudicated to satisfy the maintenance creditors.

Enforcement measures

• Fine for arrears in fulfillment of the maintenance obligation

• Case law TJ-MG - Apelação Cível AC 10024056288996002 MG. The installment of the judicial agreement between the parties entails the suspension of enforcement action (art. 792, CPC). However, if the obligation is not fully fulfilled, it should continue until all the debt is settled. The extinction of enforcement action based on that provided in art. 794, l, of the CPC, is only admitted when the maintenance has already been paid in full.

V. Enforcement measures

• Attachment of Social security benefits (FGTS e PIS)• Case law AgRg no Resp nº 1.427.836 – SP. The STJ

has recommended the possibility of FGTS and PIS escrow account garnishment when it comes from enforcement of maintenance action, because it involves the very survival of maintained and the dignity of the human person. Judgment 24/04/2014.Precedents: REsp 1.083.061/RS ;AgRg no RMS 34.708/SP, ;REsp 805.454/SP

V. Enforcement measures• Maintenance arrest warrant• Case law STJ HC 155823/RJ. It is legitimated the debtor’s maintenance

arrest warrant (prisão civil), when it is grounded on non-payment of three months obligation before the maintenance enforcement claim, or other which should have been paid during the course of that process, in accordance with Precedent n. 309/STJ. Judgment 27/04/2010.

• Case law STJ RHC 59798. The STJ’s 2nd Section has already settled that enter into agreement on maintenance during enforcement action, by itself, does not prevent the issue a warrant for the debtor’s arrest if he has not complied with the agreed upon. Judgment 08/10/2015. Precedents: HC 20.369/SP; REsp 1.454.678/MG; HC 301779//SP HC 263.964/MS; HC 280.424/RS.

• Case law. STJ AgRg no REsp 1379236/MG. The breach of maintenance agreement during the enforcement action may give rise to issue issue a warrant for the debtor’s arrest, because the agreed debt is adebt in arrears, not a past debt. Judgment 12/02/2015.Precedents. RHC 34986/SPJudgment 19/02/2013.

V. Enforcement measures• Paternity Investigation + provisional maintenance• Case law AgRg no AGRAVO EM RECURSO ESPECIAL Nº 457.640 – SP

In a legal claim for paternity investigation plus maintenance order, the initial term of the maintenance obligation is from the notification and not from the date of the judgment. Application of Precedent 277/ STJ.

• Precedent n. 277 of STJ: upheld the paternity investigation, maintenance have to be paid from the debtor judicial notification.

• Pregnancy maintenance• Case law STJ AREsp 652152. In setting the pregnancy maintenance

by the alleged parent it has to take into account his ability to pay the costs, duly proved and to meet the pregnant woman's needs. Judgment 03/08/2015.

Enforcement measures

• Reverse piercing the corporate veil• Case law. STJ Resp 1.381.973 – SC. For reverse piercing the

corporate veil of a company it is necessary that remains demonstrated the diversion of an individual's assets partner for the legal entity which has absolute control, and still continuing to enjoy the property. There is the possibility of reverse piercing the corporate veil because the defendant use the company to mask his own assets, since, without justification, has no assets in his name, not enough cash to pay the considerable debt. Prevent reverse piercing the corporate veil of a company in this particular case, implies to prestige fraude à la loi. Precedents REsp n. 1.355.693, REsp n. 1.368.429 e REsp n. 1.357.432.

Enforcement measures: MERCOSUL• Enforcement Measures via letters rogatory• Internal Market grounds. • Protocol of Las Leñas on Jurisdictional Co-operation and Assistance in Civil,

Commercial, Labour and Administrative Matters (1992 – entered into force 1996).

• Protocol of Ouro Preto on Provisional Measures (1994 - entered into force 1999).

Case law. STJ Carta Rogatória Nº 215 – EX• The Argentinian court request the attachment of earnings before the

Institute of Energy and Nuclear Research, which has been set as precautionary measure, due to the non-payment of maintenance. According to STJ, the letter rogatory is based upon the Protocol of Provisional Measures which provides for the implementation of the precautionary measures required without the application of exequatur for procedure of foreign judgments.

Enforcement measures

• Enforceability of mediation agreement• Judicial• Extra-judicial enforcement of the instrument set at Art. 784 of New CPC (or Art. 585).• Case law. STJ SEC 5635/DF. The extrajudicial provision - agreement on custody of the minor

approved by German administrative body - when, in accordance with foreign law, have the same effectiveness of judicial decision may have extraterritorial effects under Brazilian jurisdiction. There is a concurrent jurisdiction between the Brazilian and the foreign jurisdiction to adjudicate guardianship action and maintenance of a child that has been currently living in Brazil with her mother, while the father in another country. Precedents of the Supreme Court.

• In this case, the undestanding of STJ is that custody and maintenance are not subjected to the effects of res judicata, which can be qualified before the change of facts, always considering the best interest of the child. Hypothesis in which the Brazilian Judicial system takes into account the current family circumstances which has granted provisional custody of the child to the mother.

• Considering the contradictions between a foreign judgment and a Brazilian one, the STJ has decided to dismiss the foreign judgment recognition. Judgment 21/03/2012.

Enforcement measures

• Particular issues of the Brazilian jurisdiction• Case law REsp n. 831497/MG. The responsibility of the

grandparents to provide maintenance is subsidiary and complementary to the responsibility of parents, only being required in the event of failure to comply with the provision - or insufficient compliance - by parents. Judgment 04/02/2010)

• Applies the same rules.• Case law STJ RHC 38824. Enforcement of maintenance

obligation. In absolutely exceptional circumstances in which the patient, children’s grandmother, has a serious illness and old age, and due to that it is possible the fulfillment of a warrant arrest into house arrest in the respect of the dignity of the human being. Judgment 17/10/2013.

Enforcement measures

• Default rate • Case law. STJ EDcl no AGRAVO EM RECURSO ESPECIAL Nº

711.844 – RS. The STJ has partially granted the special appeal only to determine that the default interest is from payment date of each portion for maintenance. Judgment 25/09/2015.

• Case law. STJ REsp 1440777 / SP. It discusses the possibility of repetition of amounts unduly paid by the debtor and also the compensation in future maintenance portions. The STJ has upheld that the amounts paid as maintenance are under all circumstances, unrepeatable, because it presumed used in the survival of a child. According to legal provision, there is also sealing the debt clearing. Judgment 26/08/2014.

Enforcement measures• Limitation period to enforce maintenance arrears• There is no limitation with persons mental and physical disability or incapacity . Art. 198, I, do Código

Civil/2002• Case law STJ AgRg no AGRAVO EM RECURSO ESPECIAL Nº 456.987 – SP. A person with Down

Syndrome. The STJ has decides that it is unacceptable a special appeal which discusses the limition against person with down syndrome. Precedents (Súmulas) 282/STF E 356/STF. Judgment 25/11/2014

• Connection elements and qualitification. Application of Art. 9º da LINDB - • To qualify and to govern obligations, it shall apply the law of the country where they were established.

Case law. STJ RECURSO ESPECIAL Nº 1.229.218 – RJ. According to the STJ's understanding in relation to a foreign maintenance judgment from the Civil and Criminal Court of Turin, Italy, which was previously recognised by the Supreme Federal Court. As regards limitation, based on the provisions of art. 9 of LINDB, understood applicable foreign law, for which determined the observance of the ordinary period of ten years laid down in art. 2946 of the Italian Civil Code on the ground that the maintenance obligation has been established in one installment and fixed in advance. Judgment 09/08/2013.

Conclusions

• Respecting cultural judicial diversity;

• Different types of enforcement measures;

• Public policy?

• Principle of adaptation• An order for maintenance

arrest warrant could be converted in another measures for compliance

• Provisional maintenance • Paternity investigation• Pregnancy maintenance

• Application of the principle of best interest of child or of vulnerable person independently of families or household types.

Conclusions• Methods of payment• Money transfer;• Thrid party payments (such as

rent, health insurance, meidcal or dental treatment etc.

• Facilitating International legal cooperation:

• Localization of debtor´s wherarabouts to claim for maintenance;

• Information of assets

• Reinforcing central authorities role beyond intermediary public body to have a proactive role for facilitating international legal cooperation of maintenance recovery.

• Information society• iSupport • Cross-border information

on enforcement measures.• Report on cross-border

enforcement.

• INEZ LOPES• Professor of Private International Law

University of Brasilia (UnB)• Site: http://www.fd.unb.br/pt/

• inezlopes@unb.br• (61) 3107-0707

Thank you!! Muito obrigada!